Kara Phillips1 Issues of Treaty Succession As Early As the Spring and Autumn (772–476 Bc) and the Warring States (476– 221 B

China

Kara Phillips1

Issues of Treaty Succession

As early as the Spring and Autumn (772–476 bc) and the Warring States (476– 221 bc) periods, ancient China engaged in interstate relations, diplomatic con‑ tacts, and treaty negotiation.2 From the time China was unified under the Qin Dynasty (221 bc) until the end of the Qing Dynasty (1911), China conducted international relations by means of a tribute system.3 Under the tribute sys‑ tem, China occupied a superior position in relation to surrounding subordi‑ nate nations. Foreign emissaries paid their respects to the Chinese emperor in the form of time-honored ceremonies of obeisance.4 Foreign trading companies introduced China to western international law concepts during trade negotiations in the 17th Century.5 The Qing imperial government negotiated its first modern treaty with a western government (Russia) in 1689.6 However, during the next two centuries, imperial China remained steadfast in its isolationist outlook and nonconformance to western

1 The author would like to thank the Professor Xu Xiaobing and the staff of the Shanghai Jiaotong University School of Law Library, librarian Bill McCloy and the staff of the University of Washington Gallagher Law Library, librarian Bob Menanteaux and the staff of the Seattle University Law Library, librarian Joan Liu of New York University School of Law Library Lani Cao, and Frances Chen for their assistance and support in writing this article. This bibliography is a selected bibliography for the P.R.C. For further research in the area of Chinese treaties, the author recommends: Xu Jialin & Tian Jianshe (徐佳林田建设), Guoji Tiaoyue de Jiansuo Dingyi yu Fangfa (国际条约的检索定义与方法) [Research Methods and Definitions for International Treaties], available at: http://www.iolaw.org.cn/showNews.asp?id=14817 and Li Yumin, Li Chuanbin & Liu Limin (李育民, 李传斌, 刘利民) Jindai Zhongwai Tiaoyue Yanjiu Zongshu (近代中外条约研究综述) [Summary of Modern Chinese and Foreign Treaty Research] (Changsha Shi: Hunan Renmin Chubanshe (长沙市: 湖南人民出版社) 2011). 2 Wang Tieya, International Law in China: Historical and Contemporary Perspectives, in 221 Recueil des Cours: Collected Courses of the Hague Academy of International Law 205–213 (1990). 3 Id. at 219–221. 4 Jerome Alan Cohen & Hungdah Chiu, 1 People’s China and International Law: A Docu‑ mentary Study 4–5 (1974). The authors note that while there were some instances of more equal relations between China and other states, this was the exception rather than the rule. 5 Id. at 5. 6 Gary L. Scott, Chinese Treaties: the Post-Revolutionary Restoration of Interna tional Law and Order 18 (1975).

130 Phillips style international relations, preventing the establishment of foreign diplo‑ matic offices and requiring foreign representatives to adhere to the tribute sys‑ tem.7 It was not until the late 19th Century and early 20th Century that Qing officials developed expertise in the theory and practice of international law. But by that time, Western nations had already imposed a series of “unequal treaties” on China from 1842–1860,8 resulting in what has later been called China’s “semi-colonization”.9 Under the “unequal treaties,” 19 nations received several kinds of special privileges including extraterritoriality, tariff reduction, and territorial leases.10 In 1911, the Qing Dynasty was overthrown and the Republic of China (ROC) was formed under the leadership of Dr. Sun Yat-Sen.11 Although the Republic of China continued to recognize treaties negotiated between the former Qing Dynasty and foreign governments,12 the new government began to call for an end to the system of “unequal treaties”.13 From 1943 to 1947, China negotiated treaties with several Western nations, effectively ending the “unequal treaty” regime.14 China was thrown into the turmoil of a civil war from 1945–1949 between the Kuomintang Party (KMT) and the Chinese Communist Party (CCP). In 1949, the People’s Republic of China (PRC) was formally established under the auspices of the CCP.15

7 “A number of Western missions to China yielded to these demands and performed the humiliating traditional rites, including the series of abject prostrations before the emperor that have enriched our vocabulary with the word ‘kowtow’”. Cohen & Chiu, supra note 4, at 5–6. In 1908, Nepal sent the last tribute mission to China. Wang, supra note 2, at 225. 8 Cohen & Chiu, supra note 4, at 6–9. 9 Jacques deLisle, China’s Approach to International Law: A Historical Perspective, 94 Am. Soc’y of Int’l L. Proc. 271 (2000). 10 Wang, supra note 2, at 252–253. 11 Xue Hanqin, China’s Open Policy and International Law, 4 Chinese J. of Int’l L. 134 (2005). 12 Wei Wang, Historical Evolution of National Treatment in China, 39 Int’l Law. 763 (2005). 13 Hungdah Chiu, Comparison of the Nationalist and Communist Chinese Views of Unequal Treaties, in China’s Practice in International Law: Some Case Studies 239–267 (Jerome A. Cohen ed., 1972). 14 Wang, supra note 2, at 262. 15 “On December 8, 1949, the ROC government, having lost the civil war to the Communist Chinese, was forced to move its government seat to Formosa [Taiwan]. Since then, the P.R.C. government, which controls China proper except Quemoy and Matsu islands, and the ROC government, which occupies Formosa, have coexisted”. Y. Frank Chiang, One- China Policy and Taiwan, 28 Fordham Int’l L.J. 21 (2004). This relationship creates interesting and complex issues with regard to succession, diplomacy, and recognition.